The Supreme Court Sidesteps Tough Issues in Religious Baker Case

Update, June 4, 2018: On Monday, the Supreme Court ruled in favor of a Colorado baker who refused to make a wedding cake for a gay couple on the grounds that his religious beliefs forbid him to do so.

In 2012, Jack Phillips, who owns Masterpiece Cakeshop, was found to have violated a Colorado law prohibiting discrimination on the basis of sexual orientation.

The 7-2 majority opinion, written by Justice Anthony Kennedy, held that while Colorado may protect gays and lesbians from discrimination, the Colorado Civil Rights Commission violated Mr. Phillips’s free-exercise rights under the First Amendment by showing “a clear and impermissible hostility toward the sincere religious beliefs” he holds.

Those beliefs are entitled to protection under the First Amendment, the court held, and when the commission ruled against Mr. Phillips, “it did not do so with the religious neutrality that the Constitution requires.”

The narrow ruling was restricted to the facts of the case, and the court left open the possibility that the commission could still find that Mr. Phillips’s actions, or those in a similar future case, violated the state’s nondiscrimination law. In the future, the court said, “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

In December, the Editorial Board argued in favor of the couple in the case, David Mullins and Charlie Craig. Here is the original editorial:

The encounter between David Mullins, Charlie Craig and Jack Phillips in a suburban Denver bakery lasted less than a minute. But it has led to years of litigation, culminating in a date at the Supreme Court, where on Tuesday the justices will hear one of the highest-profile and most emotionally fraught cases of the current term.

Mr. Phillips is the proprietor of Masterpiece Cakeshop, where he makes elaborate wedding cakes and other baked goods. In 2012, Mr. Craig and Mr. Mullins went into the shop hoping to order a cake for their wedding. They had brought along Mr. Craig’s mother and a binder of designs they were considering. Mr. Phillips refused to serve them. Same-sex marriage violates his religious faith, he explained, and baking a cake would represent his endorsement of such a ceremony. (In accordance with his religious beliefs, Mr. Phillips also closes his store on Sundays and refuses to produce cakes with profane messages, or those that celebrate Halloween.)

The couple left in shock. They sued Mr. Phillips under a state law that bars businesses open to the public from discriminating on the basis of sexual orientation, among other things, and they won. Mr. Phillips appealed on the ground that the law infringed his First Amendment rights to free speech and the free exercise of his religion.

These are among the most revered of our constitutional rights. But Tuesday’s case is not really about them; it’s about discrimination in the public square. Put simply, you can’t offer business services to the general public and then pick and choose your customers because of who they are.

As to Mr. Phillips’s free exercise of religion claim, the Supreme Court has said that the First Amendment is not a license to discriminate in the face of neutral, generally applicable laws like Colorado’s. In 1968, a few years after the Civil Rights Act passed, the court ruled unanimously against the owner of a South Carolina barbecue chain who invoked his religious freedom to refuse to serve black people. The act “contravenes the will of God,” he claimed. The court called that argument “patently frivolous.”

Recognizing, perhaps, the weakness of the religious-freedom argument, Mr. Phillips now emphasizes his other First Amendment rights — freedom of speech and expression. His cakes are his artistic expression, he says, and he should not be forced to express ideas to which he is opposed.

Mr. Phillips makes a good case that he is an artist. So might many others who sell the fruits of their labor to those celebrating a wedding. But that doesn’t give any of them the right to refuse service to people protected under an anti-discrimination law. If the couple had asked Mr. Phillips to write a message on their cake endorsing same-sex marriage and he had been punished for refusing, he would have a more plausible First Amendment claim, since he wouldn’t write that for anyone. But Colorado’s law doesn’t compel Mr. Phillips, or any proprietor, to say anything they don’t want to say, or to endorse any specific message. It requires only that they treat all customers equally.

Mr. Phillips claims he already does this. He’s happy to sell any of his pre-made products to gay people, he says, or to bake them a custom cake for another occasion. What he won’t do is custom-bake anything intended for use in a same-sex wedding. As the Colorado Civil Rights Commission said in ruling for Mr. Mullins and Mr. Craig, that’s a distinction without a difference. Since only gay people have same-sex weddings, he’s discriminating against gay people.

Some free-speech advocates argue that this case is simply a matter of deciding which sorts of expression merit First Amendment protection and which do not. Cake bakers may be a close call, but what about photographers? Florists? Caterers? Calligraphers? In fact, cases like these have already been brought around the country. If the justices rule for Mr. Phillips, they will be hard-pressed to find a clear limiting principle. And that would render public-accommodations laws like Colorado’s effectively meaningless.

This, of course, is precisely the objective of the rear-guard action undertaken by religious objectors who, thwarted in their efforts to prevent gay couples from enjoying the rights and benefits that flow from marriage, are now invoking their own constitutional rights to avoid treating those same couples equally in the marketplace.

But equality, and human dignity, are what the cake shop case comes down to. Justice Arthur Goldberg understood this more than 50 years ago in a 1964 case involving a challenge to the Civil Rights Act’s ban on discrimination in public accommodations. Discrimination “is not simply dollars and cents, hamburgers and movies,” he wrote in a concurring opinion. “It is the humiliation, frustration and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public.” The discrimination in that case was based on race; in 2017, it’s hard to see how the same logic does not apply to discrimination based on sexual orientation.

Unfortunately, the Civil Rights Act does not yet protect gays and lesbians, so they must depend on state laws to guarantee equal treatment. Only 21 states and the District of Columbia have public-accommodations laws like Colorado’s, which means that in more than half the country, Mr. Mullins and Mr. Craig would have no recourse if a business refused to serve them because they are gay. Any possible federal protections seem highly unlikely under a Republican Congress. And the Trump administration has decided to side with Mr. Phillips — a rare example of the Justice Department weighing in against a nondiscrimination law.

Tuesday’s case will almost surely be decided by Justice Anthony Kennedy, the court’s perennial swing vote. This time, the split he faces is not only among the other eight justices, but also within himself, as the author of landmark decisions supporting both gay rights and free speech. Even in his emotional 2015 opinion legalizing same-sex marriage, he noted that the view of marriage as a “union of man and woman” is held “in good faith by reasonable and sincere people here and throughout the world.” This need not be a Sophie’s choice. Justice Kennedy can conclude that Mr. Phillips is a reasonable and sincere person, and still decide that businesses may not disregard anti-discrimination laws by cloaking themselves in the First Amendment.